How Feinstein's Fake NSA Reform Bill Could Actually Make It Easier For NSA To Record Your Phone Calls

from the sneaky-sneaky dept

We already pointed out that Dianne Feinstein's fake NSA reform bill is being positioned by her as real reform, when all it really does is codify the (probably currently illegal) status quo. Even worse, Feinstein is using highly misleading language to pretend that the bill "bans" the very things that it clearly allows. It's about as dishonest a statement about a bill as you can imagine.

We had noted in our original post that the talk about how the bill would prohibit the collection of "content of communications under Section 215" was a red herring. One of the NSA's go-to talking points is that there's "no surveillance" on the Section 215 collections because it's "just metadata." They keep repeating this claim over and over again that the leaked programs do not involve collecting the "content" of calls, pretending that this is what everyone's been complaining about. That statement alone is disingenuous. Most people following this know that the Section 215 collections don't involve the content of communications. What we're complaining about is the metadata collection, because that's very revealing. Separately, while the NSA may not collect contents "under this program," they absolutely do under other programs.

But, the actual language here may be even worse. It may be so misleading that the language being held up to "prohibit" the collection of actual call content is worded in a way that actually will allow for greater content collection. As Julian Sanchez notes at that link, the ban on content collection is only for "bulk data collection," which could be interpreted to mean it's okay for non-bulk collections, which most people believe 215 isn't regularly used for today.

The problem is, under canons of judicial interpretation, a narrow and explicit prohibition on getting content under bulk orders for communications records could easily be read to imply that content can be acquired via non-bulk orders, or even via bulk orders for other types of records. At present, it is not clear whether the statute allows for the acquisition of contents under 215, but there are strong arguments it does not—though, of course, I’d argue the Constitution would forbid this even if the statute didn’t. Under this law, though, a clever Justice Department lawyer could plausibly argue that a prohibition on content collection under one very specific type of 215 order would be senseless and redundant unless Congress intended for content to be accessible under 215 orders generally—and Courts generally have to interpret the law in a way that avoids making any provision redundant.

And, as Sanchez further points out, this isn't a theoretical concept. The Justice Department has already used exactly this type of argument to allow for the bulk data collection in the first place:

This is not at all a hypothetical concern. In 2006, Congress amended Section 215 to add special “protections” for educational and medical records. What Congress didn’t know is that, because those records are already protected under other federal laws, and 215 contained no language explicitly overriding those statutes, the Justice Department had determined that 215 simply could not be used to access those types of records—an interpretation that was reversed after the “protections” were added. Congress, in other words, inadvertently expanded the scope of 215 while trying to limit it—a fact that was discovered only later, when a report by the Inspector General revealed the unintended consequences of the amendment.

This is yet another example of the really evil word games the NSA and its defenders will use to increase spying, while pretending they're doing the opposite. Now would be a good time to reach out to your Senator to let them know that the Feinstein bill is absolutely unacceptable.

Carts and horses

"...word games the NSA and its defenders will use to increase spying"

They don't use these word games to increase spying, they use them to increase legal ass-coverage for spying that they already do.

It's quite plain that when a novel technique is available to them, they do not wait for supporting legislation before they use it, they implement it completely and if they think anyone will find out and object, only then do they task their spin masters to provide retroactive legislation "reforms" justifying it.

It's like Feinstein read 1984, and then is trying to apply all the "methods" in it. This bill is full of Newspeak "We're going to restrict NSA's surveillance capabilities!" (by allowing them to spy more!)

Recall this bitch already. I can't imagine how it will be with her as the head of the Intelligence Committee until 2018....that's hell.

Mandatory Congressional training

Perhaps all elected members of Congress and State legislatures should additionally be required to participate in government wide games of Nomic. This would provide them expert level training for dealing with these situations and we could reasonably expect them to do so.

It seems that one of the greatest problems Congressional representatives point to when they have a flawed bill is not having been able to predict how it would be twisted, or arguing that it will not be when trying to pass something. Such a training regimen would remove this excuse from their arsenal, whilst ensuring that more scrupulous members elected to these positions would be able to counter their attempts.

Nomic, for those who have never encountered the game, is a game that chiefly features the ability to change the rules of the game. Victory is accomplished by ensnaring yourself in the rules such that you must act for the game to continue, but can demonstrate logically that you cannot by the current rules. Additional victory conditions are also possible, as all rules are subject to change. Most starting rule-sets contain a preposterously difficult alternative victory condition.

I would expect no less from Senator Spystein. I do however, expect more from the rest on Congress. I expect them to actually be competent in their job as law makers, and actually pass functional legislation that does what it's intended to do.

It appears members of Congress can't even succeed at passing competent laws any more.